Good, fast, cheap: pick two

A study performed by Cornell University in 2004 found that Texas assigns the death penalty at a rate lower than the national average (2 percent versus 2.5 percent). The most death penalty-prone states were not Texas or Florida, but rather Oklahoma (6 percent) and Nevada (5.1 percent). In part this rate disparity owes to Texas's sentencing standards. In order for the death penalty to be assigned, a crime must meet certain objective criteria (scroll down). For example, when a police officer or firefighter is murdered, when a child under age 6 is murdered, or in the case of multiple murders. Subjective criteria—the "heinousness" of a crime, for example—are not considered. Texas's sentencing standards are those that tend to find sympathy among even moderate opponents of the death penalty.

The speed with which the state carries out capital punishment, however, finds no quarter among sensible observers. Both the Texas Court of Criminal Appeals and the Texas Fifth Circuit are prosecutorially oriented; a state prosecutor explained to me today that there are no defense lawyers serving on the Court of Criminal Appeals at all. The speed of the system is aggressive, as critics point out, and is certainly out of step with the current national mood. (Indicators of which include the so-called national moratorium—although it is no such thing. The Supreme Court has merely stayed every execution by way of lethal injection that has come across its desk. A formal SCOTUS moratorium would have delayed the hasty execution of Michael Richard; the "de facto" moratorium did not.)

The Times: "The death penalty developments that have dominated the news in recent months are unlikely to have anything like the enduring consequences of Texas' vigorous commitment to capital punishment." True for the convicts put to death, of course; true for the families of their victims, I would imagine. In other respects, this is a dramatic statement. The state's execution of executions is impressive and awful, the product of a pervasive political problem that inflects the justice system. Its devotion to the death penalty, however, is truly average.

The prosecutorial bias is much more disturbing than the fact that Texas has the death penalty, even though I'm against the death penalty. Spending your entire life behind bars isn't so much better than dying; we should be focused less on the small number of executions, and more on the biases in the system that lead to wrongful convictions of all kinds. And sadly, Texas isn't really unique in this regard, either.

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